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By Edward J. Buzak
League Associate Counsel
Chair of League Affordable Housing Committee

The general election to be held on November 6, 2007 will be a historic one in New Jersey. It will be the last election at which any currently elected official will be able to seek and hold a new elective position while maintaining their first elective position. On September 5, 2007, Governor John Corzine signed A-4326, enacting P.L. 2007 c. 161 which statutorily prohibits dual elective office holding as of February 1, 2008 except for those who hold dual elective offices on that date and thereafter, continuously holding both elective offices. Although prohibiting dual elective office holding, on the other hand, the new law legitimatizes the practice of members of the Legislature holding appointive offices by providing that a member of the state Legislature can simultaneously hold any appointive office or position in county or municipal government. N.J.S.A. 40A:9-4. Interestingly, the statute is silent as to whether an elected county official or an elected local official can hold an appointive office at any level of government. Although the failure to affirmatively legitimatize other elected officials holding appointive governmental positions could imply that such activity is inappropriate, it is suggested that such an implication is probably misplaced because in general, prohibited activity in this field is specifically and clearly stated and not implied.

Legislature Prohibitions The current statutory provisions in the election laws prohibit a person from holding simultaneous membership in the United States Senate, House of Representatives, member of the Senate or General Assembly of the State, County Clerk, Registrar, Surrogate or Sheriff. Beginning February 1, 2008, that statute has been amended to specifically prohibit a member of the Senate or General Assembly from holding simultaneously any other elective position at any level of government. However, there is a grandfathering provision that allows a member of the Senate or General Assembly who currently holds another elective office on February 1, 2008 to continue to hold those dual elective offices, providing that the service in both is continuous thereafter. The loss of any election for either of the positions eliminates the grandfathering and activates the prohibition.

It is important to note that the legislation separately describes the position of (i) member of the General Assembly and (ii) member of the Senate (as opposed to simply combining them as “member of the state Legislature”). This nuance will trigger the activation of prohibition on dual office holding if a dual office holder in the General Assembly successfully moves up to the state Senate (or vice-versa). In that case, the continuity of the dual offices is broken and the successful Senate or Assembly candidate must relinquish the other dual elective office.

County Officials and General Prohibition Currently, N.J.S.A. 40A:9-4 specifically allows dual office holding as an elected county official and an elected municipal official. Historically, this statute was adopted to reverse the New Jersey Supreme Court’s 1961 decision which specifically prohibited a member of the Board of Chosen Freeholders of a county to be an elected municipal mayor in that county. McDonough v. Roach, 35 N.J. 153 (1961). Effective February 1, 2008, that statute has been amended to change the word “lawful” to “unlawful” and will specifically prohibit a person from simultaneously holding an elective county office and an elective municipal office. Again, the grandfathering provisions allow for the continuance of such current dual office holding, provided that the two positions are held continuously after February 1, 2008. The section reads:

“Notwithstanding the provisions of paragraph (1) [making it unlawful for a person to hold simultaneously an elective county and an elective municipal office] of this section, a person who, on the effective date of [L.2007 c. 161] holds simultaneously an elective county office and an elective municipal office may continue to hold the elective offices simultaneously if service in those elective offices is continuous following the effective date of [this act]. (Emphasis added).

Although this grandfathering provision does not distinguish among different levels of county elective offices (as does the grandfathering section for the state Legislature), it is maintained that a fair reading of the statute results in a conclusion that the reference to “those elective offices” refers back to those specific elective offices simultaneously held on February 1, 2008, not generically a county office or generically a municipal office.

To cover all other circumstances, a new section of the law was enacted that reads:

“For elective public office other than as provided in R.S. 19:3-5 or N.J.S. 40A:9-4, a person elected to public office in this State shall not hold simultaneously any other elective public office.” L. 2007 c. 161, Section 3a.
Subsection 3b of L. 2007 c. 161 contains the same grandfathering language referenced above as to county offices, i.e. that those persons who simultaneously hold more than one elective public office as of February 1, 2008 can continue to hold those offices simultaneously “…if service in those elective public offices is continuous following the effective date of [this Act]“. (Emphasis added).

Conclusion No inappropriate motive should be attributed to the effective date of February 1, 2008 for this Act. The original Assembly bill, A-4326, was introduced on May 21, 2007 prior to the June primary elections and enacted after the primary elections. Electoral havoc would have been created in certain cases had the bill taken effect prior to November 6, 2007 or prior to the date that those elected in the November general election take office in January, 2008. Undoubtedly, tying the grandfathering provisions to the effective date of the Act provides for a smoother transition without again creating the electoral havoc that would have otherwise been created had the law taken effect prior to that date.

No doubt this law will directly prevent the type of mischief whereby a local municipal official sponsors and shepherds through the Legislature a particular piece of legislation that directly benefits that municipality. Over the years, we have seen a number of statutes that were obviously enacted to benefit a single or small group of municipalities or counties, typically by making the law applicable to cities of a particular class or counties of a particular population. Nothing, however, will prevent the home district state legislator, however, from sponsoring similar legislation.

It must be emphasized that this legislation only applies to dual elective office holding. It does not affect elective officials serving in appointive capacities, which potentially presents an even greater moral and ethical dilemma. A report prepared by Tom O’Neil and Bill Schluter, entitled “How Much is Enough?” argues that duel elective office holding is “…just the tip of the iceberg” and that the more pervasive and potentially damaging problems develop from an elective official holding a non-elective/appointed position in the public sector. The report is available at: www.njpp.org/rpt_enough.html.

While ending dual elective office holding may pacify the public clamoring for reform, ethical and moral conduct cannot be legislated. Just as the enactment of criminal statutes does not prevent crime, the enactment of preclusive dual office holding legislation will not prevent unethical or immoral individuals from acting in that fashion anyway. Although there is obviously a deterrent effect, in the end, the unethical politician will continue to be unethical until caught just as the criminal will continue his criminal ways until caught. The most effective way of preventing unethical conduct is to elect ethical officials. Every citizen of this state has the ability to contribute to that effort by participating in the electoral process and voting for candidates who demonstrate the type of ethical and moral values that advance the public good.